- The Washington Times - Tuesday, July 25, 2000

Pro-choice exponents pontificate as voices of individual autonomy in the highest tradition of John Stuart Mill's "On Liberty." Women should be permitted freely to choose whether to carry a pregnancy to term or to abort, according to their sound track; the government has no business placing its thumb behind either option. The moral and health issues implicated in the abortion decision, they righteously declaim, are too important to be consigned to the whimsies of the political process.

But when pro-choice crusaders champion muffling pro-life voices, the sincerity of their professed libertarian dogma might reasonably be questioned. They seem reminiscent of a teaching applicant for a public high school who blithely responded when asked whether he believed the Earth was round or flat: "I can teach it both ways."

Take the recent illiberal free speech decision by a 6-3 vote of the U.S. Supreme Court in Hill vs. Colorado (June 28, 2000). At the vocal behest of pro-choice organizations, the Colorado state legislature made criminal unwanted close encounters with pro-life advocacy near health-care clinics, the most effective way to awaken in women contemplating abortion the moral gravity of their choices. The hearings exploring the evils that culminated in the statute, however, were overwhelmingly dominated by complaints over access to abortion clinics, not speech. And the text of the law explained its objective as ensuring citizen access to "medical counseling and treatment in an unobstructed manner" by "preventing the willful obstruction of a person's access to medical counseling and treatment at a health care facility."

Colorado's criminal prohibition, however, reached beyond its access objective to ensnare pro-life speech most likely to dissuade women from abortion. Within 100 feet of any health care facility entrance, no person may make an unconsented "knowingly approach" within 8 feet of another person "for the purpose of … engaging in oral protest, education, or counseling."

Despite its neutral language, the criminalizing of undesired speech within the 8-foot area transparently aimed to suppress pro-life viewpoints. Thus, oral advocacy celebrating abortion rights is unrestricted; but protesting abortion choices without the consent of the listener is criminal (and abortion patients are improbable candidates for inviting pro-life protesters to face-to-face communications).

The suppression of pro-life speech within the 8-foot area might have been justified if past experience demonstrated inevitable altercations traumatic to patients. But that objective did not animate the Colorado law. It is not recited as a purpose; and, the prohibition permits bellowing through a bullhorn outside the restricted zone at whatever decibel level the lungs admit, no matter how shattering to clinic tranquility.

Defenders of the anti-free speech law denied any hostility toward pro-life protests or counseling. They noted (perhaps with suppressed laughter) that equally restricted were execrations against the war on drugs, the deification of Harry Potter, genetically altered food, or Wagnerian opera. Neither the past, present nor future, however, even hinted at such theoretical speech near health-care clinics. As to those topics, the law was a splendid irrelevancy.

In non-abortion cases, the Supreme Court characteristically refuses to shut its eyes what every common woman or man knows. Thus, in Grosjean vs. American Press Co. (1936), the court invalidated a Louisiana 2 percent gross receipts tax on the advertising revenues of publications sporting weekly circulations exceeding 20,000 as a violation of press freedom. Gov. Huey Long had concocted the tax to retaliate against the adverse reporting and editorializing of the most popular news publications, and the court instantly detected and denounced the ruse: "The form in which the tax is imposed is in itself suspicious. It is not measured or limited by the volume of advertisements. It is measured alone by the extent of the circulation of the publication in which the advertisements are carried, with the plain purpose of penalizing the publishers and curtailing the circulation of a selected group of newspapers."

Similarly, in Epperson vs. Arkansas (1968), the court held that an Arkansas "anti-evolution" statute forbidding public schools to teach Darwin violated the Constitution's separation of church and state because of the state's obviously tainted motive: "[T]here can be no doubt that Arkansas has sought to prevent its teachers from discussing the theory of evolution because it is contrary to the belief of some that the Book of Genesis must be the exclusive source of doctrine as to the origin of man."

Human nature shies from disagreeable viewpoints, especially the morally agonizing. Slaveholders applauded a mail ban on abolitionist literature, and deplored "Uncle Tom's Cabin."

Abortion patients instinctively resist pro-life voices, education, or counseling because they challenge the morality of terminating a pregnancy. But some would be persuadable if approached in a compassionate and caring manner prohibited by the Colorado law. The named plaintiff in the Hill case amplified: "In my many years of sidewalk counseling, I have seen a number of [abortion-bound] women change their minds about aborting their unborn children as a result of my sidewalk counseling, and God's grace."

A woman testifying before the Colorado Senate elaborated on her dissuasion from abortion after hearing the pro-life side that offset an institutionalized pro-abortion slant: "[M]ost women have to make [the abortion] decision alone… . I was scared and all alone. I was too embarrassed to ask for help … [T]he only people that were on my side were the people at the abortion clinic. They knew exactly how I was feeling and what to say to make it better. In my heart, I knew abortion was wrong, but it didn't matter… . One of the major reasons I did not go through with my scheduled abortion was the picture I was given while I was pregnant. This was the first time I had received the other side of the story… . The people supplying the pamphlet helped me make [an informed] choice… . Because of this picture I was given, right there, this little boy got a chance at life that he never would have had."

To paraphrase from George Orwell's "Animal Farm," all abortion speech is equal in the U.S. Supreme Court, but pro-choice speech is more equal than its pro-life brother. Where can be heard the traditional celebrants of the First Amendment?

Bruce Fein is a lawyer and free-lance writer specializing in legal issues.

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